Kuwait Court of Cassation principle number 397

Summary: - Determining the date of annual leave. A right of the employer. The worker may accumulate leave not exceeding 60 days and take it in a single period after obtaining the employer’s approval. Accumulation of annual leave for more than 2 years. Permissible with both parties’ agreement. The worker’s right to receive a cash equivalent for the days of annual leave accumulated for all years of service upon termination of the contract. Article 73 of Law 6 of 2010 concerning Labour in the Private Sector contains nothing depriving the worker of the cash equivalent of his leave or extinguishing his right thereto for what exceeds 60 days in this case. Reason therefor: had the legislature intended this, it would have expressly provided for it, because it is impossible for the worker to take the leave in kind upon termination of the employment contract. The challenged judgment’s adherence to this view. Correct. Rule: The provision in Article 72 of Law No. 6 of 2010 concerning Labour in the Private Sector that: "The employer shall have the right to determine the date of annual leave and may also divide it with the worker’s consent after its first 14 days. The worker shall have the right to accumulate his leave up to a maximum of 2 years’ leave, and may, after obtaining the employer’s approval, take it in a single period. Annual leave may be accumulated for more than 2 years with both parties’ agreement," and the provision in Article 73 thereof that: "Without prejudice to the provisions of Articles (70) and (71), the worker shall have the right to receive a cash equivalent for the days of his accumulated annual leave in the event of termination of his contract," indicate, as disclosed by the Explanatory Memorandum, that the employer has the right to determine the date of annual leave, and permitted the worker to accumulate his leave up to a maximum of 60 days’ leave after obtaining the employer’s approval and then take it in a single period, and permitted both parties to agree to accumulate the worker’s leave for more than 2 years in response to practical necessities, and the worker’s entitlement to receive the cash equivalent of his accumulated leave for all years of service upon termination of the contract for any reason. The concluding portion of the aforementioned provision contains nothing depriving the worker of the cash equivalent of his leave for all his years of service upon termination of his employment contract without giving notice, or extinguishing his right to the cash equivalent for what exceeds 60 days. Had the legislature intended this, it would have expressly provided for it, because, upon termination of the employment contract, it is impossible for the worker to take it in kind. Since the challenged judgment adhered to this view and awarded the respondent the cash equivalent for the full duration of his annual leave, amounting to 73 days, it accorded with the correct law, and the challenge against it on this ground is unfounded.